Citation Nr: 1003633
Decision Date: 01/25/10 Archive Date: 02/01/10
DOCKET NO. 08-09 261 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office in
Wilmington, Delaware
THE ISSUE
Entitlement to a rating in excess of 10 percent for the
orthopedic manifestations of residuals of a fracture of the
left wrist with arthritis.
REPRESENTATION
Appellant represented by: Delaware Commission of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Turner, Associate Counsel
INTRODUCTION
The Veteran served on active duty from February 1967 to
September 1969.
This matter initially came before the Board of Veterans'
Appeals (Board) on an appeal from a rating decision issued by
the Regional Office (RO) in Wilmington, Delaware that denied
a rating in excess of 10 percent for residuals of a fracture
of the Veteran's left wrist with arthritis.
In June 2009 the Board remanded this matter because the
Veteran claimed that his symptoms got worse and that he had
developed neurological problems with his left hand. In a
November 2009 rating decision the RO/AMC granted the Veteran
a separate 10 percent rating for neurological symptoms
associated with his fracture of the left hand from October
2009. The Veteran has not disagreed with the rating or the
effective date, so that matter is not before the Board.
Therefore, the Board will address only the orthopedic
manifestations of the Veteran's disability in this decision.
The Veteran testified before the undersigned Veteran's Law
Judge at an April 2009 hearing that was held at the RO.
FINDING OF FACT
The orthopedic manifestations of the residuals of a fracture
of the Veteran's left wrist with arthritis are not
characterized by any type of ankylosis of the Veteran's left
wrist. The Veteran is right handed.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 10 percent for
the orthopedic manifestations of the residuals of a fracture
of the left wrist with arthritis are not met. 38 U.S.C.A. §§
1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, diagnostic
codes 5003, 5010, 5214, 5215 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Notify and Assist
The Veterans Claims and Assistance Act of 2000 (VCAA)
describes VA's duties to notify and assist claimants with
substantiating their claims for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R.
§ 3.102, 3.156(a), 3.159.
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant of any information, and any medical or lay evidence,
that is necessary to substantiate his or her claim. 38
U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183, 186-187 (2002). In accordance
with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform
the claimant of any information and evidence not of record
(1) that is necessary to substantiate the claim; (2) that VA
will seek to provide; and (3) that the claimant is expected
to provide. The Board notes that 38 C.F.R. § 3.159 was
revised in part, effective May 30, 2008. See 73 Fed. Reg.
23,353-23,356. The third sentence of 38 C.F.R. §
3.159(b)(1), which stated that "VA will also request that
the claimant provide any evidence in the claimant's
possession that pertains to the claim," was removed. This
amendment applies to all applications pending on, or filed
after, the regulation's effective date.
VCAA notice should be provided to a claimant before the
initial unfavorable decision on a claim by the agency of
original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet.
App. 112, 115 (2004). However, the VCAA notice requirements
may be satisfied notwithstanding errors in the timing or
content of the notice if such errors are not prejudicial to
the claimant. Id at 121. Further, a defect in the timing of
the notice may be cured by sending proper notice prior to a
re-adjudication of the claim. Mayfield v. Nicholson, 444
F.3d 1328, 1333-1334 (Fed. Cir. 2006).
The VA General Counsel issued a precedential opinion
interpreting Pelegrini as requiring the Board to ensure that
proper notice is provided unless it makes findings regarding
the completeness of the record or other facts that would
permit the conclusion that the notice error was harmless.
See VAOGCPREC 7-2004.
The United States Court of Appeals for the Federal Circuit
reaffirmed the importance of proper VCAA notice in Mayfield
v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and
its progeny instruct that a comprehensive VCAA letter, as
opposed to a patchwork of other post-decisional documents, is
required to meet the VCAA's notification requirements. Id at
1320. However, VCAA notification does not require a pre-
adjudicatory analysis of the evidence already contained in
the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App.
537, 541 (2006).
During the pendency of this claim, the United States Court of
Appeals for Veterans Claims (Court) decided Dingess v.
Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), in which it held
that VCAA notice requirements are applicable to all five
elements of a service connection claim. Thus, the Veteran
must be notified that a disability rating and effective date
for the award of benefits will be assigned if service
connection for a claimed disability is awarded. Id at 486.
In this case, the Veteran was sent a VCAA letter by the RO in
November 2005, prior to the rating decision appealed herein,
that explained that the Veteran needed to show that his
service connected disability got worse in order to receive a
higher rating therefore. The letter also explained the types
of evidence that VA was responsible for obtaining on behalf
of the Veteran as well as the types of evidence that VA would
make reasonable efforts to obtain if sufficiently identified
by the Veteran. The letter also informed the Veteran that it
was ultimately his responsibility to ensure that VA received
all relevant records that were not in the possession of a
federal department or agency.
In August 2008, the Veteran was sent another letter that
explained the manner whereby VA assigns disability ratings,
including the specific criteria applicable to orthopedic
disabilities of the wrist. His claim was thereafter
readjudicated in a June 2009 Supplemental Statement of the
Case (SSOC) and a in a November 2009 SSOC, thereby curing any
predecisional notice errors with respect to this issue.
The Veteran was not provided information concerning the
manner whereby VA assigns effective dates. However, in this
case the error is not prejudicial to the Veteran insofar as
an increased rating is denied herein so no effective date
will be assigned.
In addition to its duty to provide claimants with various
notices as discussed above, VA also must make reasonable
efforts to assist them in obtaining the evidence that is
necessary to substantiate their claims, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. §
3.159. In connection with the current appeal VA has evidence
including service treatment records, VA treatment records,
and a transcript of the Veteran's testimony at an April 2009
hearing. The Veteran was examined twice by VA in connection
with this claim. In June 2009, the Veteran's representative
sent in a written statement indicating that the only evidence
in support of the Veteran's claim consisted of his VA
treatment records and returned a VCAA notice response
indicating that the Veteran had no further evidence to
submit.
The Board acknowledges that the Veteran's VA treatment
records indicate that he told his VA medical providers that
he received private treatment for his left wrist in 2006.
However, insofar as the Veteran's representative specifically
indicated that all of the Veteran's treatment for his left
wrist disability was at a VA medical facility on a VA Form
21-4138 dated in July 2009, to the extent any private
treatment records exist they could not be obtained. In this
regard, the Board notes that "[t]he duty to assist is not
always a one way street. If a veteran wishes help, he cannot
passively wait for it in those circumstances where he may or
should have information that is essential in obtaining the
putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193
(1991).
For the reasons above the Board finds that VA satisfied its
obligations pursuant to the VCAA.
Additionally, the Board finds that VA substantially complied
with the instructions that were set forth in its June 2009
remand of this matter. See Stegall v. West, 11 Vet. App.
268, 271 (1998); See also Dyment v. West 13 Vet. App. 141,
aff'd sub nom Dyment v. Principi, 287 F.3d 1377, 147 (2002)
(remand not required under Stegall where Board's remand
instructions were substantially complied with). In
compliance with the remand instructions, the RO/AMC obtained
the Veteran's VA treatment records for the period from May
2005 to October 2009; as noted above, the Veteran's
representative denied that the Veteran received any private
treatment for his wrist.
The Veteran was also provided a VA examination that
substantially complied with the parameters set forth in the
remand, including assessing both the neurological and
orthopedic manifestations of the residuals of the Veteran's
fracture of his left wrist with arthritis. Thereafter, the
Veteran's claim was readjudicated as set forth in the remand
instructions. Thus, the requirements of Stegall and Dyment
were met. Id.
II. Increased Rating
The Veteran claims that the orthopedic manifestations of his
wrist disability are more serious than are contemplated by
the currently assigned 10 percent rating therefore. As noted
in the introduction, while the Veteran also claimed to be
experiencing neurological symptoms that were related to his
left wrist residuals of fracture with arthritis, the RO/AMC
granted the Veteran a separate 10 percent rating for these
symptoms in a November 2009 rating decision which is not on
appeal herein. Thus, the Board will address only the
orthopedic manifestations of the Veteran's disability. The
Veteran is right handed.
Disability ratings are determined by applying criteria that
are set forth in the VA's Schedule for Rating Disabilities
(38 C.F.R. Part 4). Ratings are based on average impairments
of earning capacity resulting from particular diseases and
injuries and the residuals thereof in civilian occupations.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are
described utilizing diagnostic codes set forth in 38 C.F.R.
Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher rating will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. See 38 C.F.R. § 4.7.
Where entitlement to compensation for a service-connected
disease or injury already has been established and
entitlement to an increase in the disability rating is at
issue, the present level of disability is of primary
importance. See, e.g., Franciso v. Brown, 7 Vet. App. 55, 58
(1994). Staged ratings are, however, appropriate for an
increased rating claim when the factual findings show
distinct time periods where the service-connected disability
exhibits symptoms that would warrant different ratings. The
relevant focus for adjudicating an increased rating claim is
on the evidence concerning the state of the disability from
the time period one year before the claim was filed until VA
makes a final decision on the claim. See generally Hart v.
Mansfield, 21 Vet. App. 505 (2007).
Traumatic arthritis, diagnostic code 5010, is rated as
degenerative arthritis pursuant to diagnostic code 5003. See
38 C.F.R. § 4.71a diagnostic codes 5003, 5010. Arthritis is
rated on the basis of the limitation of motion of the
affected joint. When the limitation of motion of the
affected joint is non-compensable under the appropriate
diagnostic code, a rating of 10 percent is applied to each
affected major joint or group of minor joints. In the
absence of limitation of range of motion, a 10 percent
evaluation is assigned for x-ray evidence of the involvement
or 2 more major joints or 2 or more minor joint groups, and a
20 percent evaluation is assigned where such x-ray findings
are accompanied by occasional incapacitating exacerbations.
A 10 percent rating can also be assigned where there is
limitation of motion that is non-compensable under the
schedular criteria. Id.
Limitation of motion of the wrist is rated utilizing
diagnostic code 5215, whereby a 10 percent rating is assigned
for either dorsiflexion of less than 15 degrees or palmar
flexion that is limited in line with the forearm. The 10
percent rating applies regardless of whether the limitation
of motion affects the dominant or the non-dominant hand.
Higher ratings are assigned for ankylosis of the wrist
pursuant to diagnostic code 5214. For instance, pursuant
thereto, a 20 percent rating is assigned for favorable
ankylosis in 20 to 30 degrees of dorsiflexion of the non-
dominant hand. A 30 percent rating is assigned for favorable
ankylosis in 20 to 30 degrees of dorsiflexion of the dominant
hand or for ankylosis of the non-dominant hand in any other
position except favorable. 38 C.F.R. § 4.71a, diagnostic
code 5214.
Evaluation of a service-connected disability involving a
joint rated on limitation of motion requires adequate
consideration of functional loss due to pain under 38 C.F.R.
§ 4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. DeLuca v. Brown , 8 Vet. App. 202, 205-206 (1995).
The provisions of 38 C.F.R. § 4.40 state that disability of
the musculoskeletal system is primarily the inability, due to
damage or inflammation in parts of the system, to perform
normal working movements of the body with normal excursion,
strength, speed, coordination and endurance. Functional loss
may be due to the absence of part, or all, of the necessary
bones, joints and muscles, or associated structures. It may
also be due to pain supported by adequate pathology and
evidenced by visible behavior of the claimant undertaking the
motion. 38 C.F.R. § 4.40. The factors of disability
affecting joints are reduction of normal excursion of
movements in different planes, weakened movement, excess
fatigability, swelling and pain on movement. 38 C.F.R. §
4.45.
The Veteran was first examined by VA in connection with this
claim in December 2005. At that time, the Veteran reported
experiencing stiffness, sharp pain, weakness, and
"ickyness" of his left wrist. He reported that repetitive
activities increased his left wrist pain. His activities of
daily living were unimpaired and the Veteran was able to work
notwithstanding his wrist disability. He did not report
using a wrist brace. He reported taking anti-inflammatory
medications for his knees that also helped his wrist.
Upon examination, the Veteran's left wrist was tender. He
could extend his wrist from 0 to 15 degrees and flex his
wrist from 0 to 15 degrees. Ulnar deviation was from 0 to 10
degrees and radial deviation was from 0 to 15 degrees. There
was no additional loss of range of motion due to pain,
fatigue, weakness, or incoordination after repetitive motion
testing of the Veteran's left wrist. A neurological exam was
normal. The examiner diagnosed a fracture of the left wrist
with arthritis.
The Veteran's left wrist was reexamined by VA in October
2009. At that time, the Veteran's chief complaints were pain
in the left hand and weakness, particularly after repetitive
activities. He complained of dropping things. The Veteran
did not use a brace. He was able to pick up a coin. He
could hold eating utensils and use a button. He was
independent with his activities of daily living and was able
to work, although he reported having some difficulty at work
due to the symptoms associated with his left wrist and hand.
Upon examination, the Veteran was able to extend his wrist
from 0 to 10 degrees, flex his wrist from 0 to 15 degrees,
and had 0 to 15 degrees of ulnar and radial deviation. He
experienced pain at 10 degrees of extension, 15 degrees of
flexion, all ulnar deviation, and 0 to 10 degrees of radial
deviation. There was no additional loss of range of motion
due to fatigue, pain, weakness, or incoordination after
repetitive motion testing.
VA treatment records show that the Veteran has degenerative
joint disease of the left wrist. VA treatment records also
show complaints of left wrist pain, reduced motion of the
left wrist, but no evidence of ankylosis. For example, a
treatment record dated in September 2005 noted that the
Veteran's chief complaint was left wrist pain which he rated
as a 6 out of 10 in severity. Limitation of motion of the
left wrist was 10 degrees on pronation and supination and 10
to 20 degrees on flexion and extension. Subsequent treatment
records show normal range of motion in the Veteran's left but
continued symptoms of pain and neurological impairment
including left wrist carpal tunnel syndrome.
.
At his hearing in April 2009 the Veteran testified that he
had difficulty gripping and lifting with his left hand. When
lifting heavy objects, he had to use his forearm. He
testified he had some numbness of the fingers on his left
hand and weakness of the left hand that made it difficult to
hold certain objects. He had diminished strength in his
thumb. He was able to do approximately 90 percent of his
work at his place of employment but needed assistance with
some tasks due to his wrist. At those times, he got someone
to help him.
The evidence does not show that the Veteran meets the
criteria for a rating in excess of 10 percent for the
orthopedic manifestation of his residuals of a fracture of
the left wrist with arthritis. He does not have any type of
ankylosis of his wrist and 10 percent is the highest rating
available for limited motion of the wrist. See 38 C.F.R. §
4.71a, diagnostic codes 5214-5215. The Veteran also would
not receive a higher rating for his left wrist arthritis
under the criteria for arthritis without limitation of motion
that are set forth in diagnostic code 5003.
The Board finds that the Veteran's symptoms do not present
such an exceptional disability picture so as to render the
schedular rating inadequate. 38 C.F.R. § 3.321(b). See also
Thun v. Peake, 11 Vet. App. 111, 115 (2008) (the threshold
factor for extraschedular consideration is a finding that the
evidence before VA presents such an exceptional disability
picture that the schedular evaluation is inadequate). The
Veteran's orthopedic symptoms are fully contemplated by the
rating schedule. There is no evidence the Veteran required
repeated hospitalization for his left wrist. He is still
able to maintain employment, and at his April 2009 hearing he
testified that he is able to perform 90 percent of his
employment tasks without assistance. Therefore, the
Veteran's wrist disability does not materially interfere with
his employment.
The Board acknowledges that VA is statutorily required to
resolve the benefit of the doubt in favor of the Veteran when
there is an approximate balance of positive and negative
evidence regarding the merits of an outstanding issue. That
doctrine is inapplicable in the instant case because the
preponderance of the evidence is against the Veteran's claim.
See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990);
38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied.
ORDER
A rating in excess of 10 percent for the orthopedic
manifestations of residuals of a fracture of the Veteran's
left wrist with arthritis is denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs